Commercial Court No. 1 of Seville rules on the need to register shareholders’ agreements in the Commercial Register in order for their compliance to be considered an ‘ancillary obligation.’

Judgment of Commercial Court No. 1 of Seville No. 64/2025, of 28 July 2025.

The Commercial Court upholds the Commercial Registry’s refusal to register an article of the articles of association that imposed on the shareholders the obligation to comply with a shareholders’ agreement, as an ancillary provision, on the grounds that the mere reference in the articles of association to the deed containing the said agreement was not sufficient. The plaintiff company argued that this identification was sufficient to consider the content of the ancillary obligation as specific and determined, as required by Article 86 of the Capital Enterprises Act, and that it was in line with the criteria maintained by the Directorate General for Legal Security and Public Trust in resolutions of 2018 and 2024.

The judgment rejects this argument and emphasises the practical consequences of this way of configuring the obligation. In its opinion, the statutory reference to an unregistered shareholders’ agreement, the specific content of which is not accessible to third parties or potential purchasers of shares in the company, creates a lack of transparency that is incompatible with the informative function of the Commercial Register and makes it difficult for the company itself to effectively enforce compliance with the provision.

The Commercial Court recalls that ancillary obligations, owing to their direct impact on the legal position of the shareholder, must strictly comply with the requirement of determination provided for in the Capital Enterprises Act and that, therefore, their content must be clearly, specifically and directly recognisable in the registered articles of association, without a generic reference to external documents not subject to registration being sufficient.

From this perspective, the judgment concludes that ancillary benefits that require compliance with shareholders’ agreements are only enforceable by the company when the content of such agreements is incorporated or sufficiently reproduced in the articles of association and has been duly registered in the Commercial Register.

Notwithstanding the foregoing, the judge himself acknowledges that the Directorate General would have decided this case differently, a statement that calls for monitoring what may be decided on this matter in higher courts, in particular, generating case law that is binding on both courts and the Directorate General.